Shiv Cotton Mills Pvt. Ltd. vs Daya Ram
1995 Latest Caselaw 955 Del

JUDGMENT

K. Ramamoorthy, J.

1. The plaintiff Shiv Cotton Mills (P.) Ltd., has filed this Application No. IA No. 3589 (90) in Suit No. 1463/90 against Daya Ram who is carrying on business under the name of M/s. Manju Falls who is the 2nd Defendant in the suit. The relief sought for is that the defendants should not use the trade mark Manju for the purpose of selling blouse pieces. The plaintiff admits that the defendants are carrying on business of selling blouse pieces and saree falls under the trade mark Manju.

2. The case of the plaintiff in Suit No. 1463/90 is as follows :

In the year 1980 the predecessor in interest of the plaintiff namely, M/s. Shiv Rubia House and also trading as M/s. Shiv Cotton Mills commenced manufacturing and selling textiles piece goods (blouse pieces) under a fanciful and distinctive trade mark Manju. On 2.12.1989, the trade mark Manju was assigned to the plaintiff-Company. According to the plaintiff the business and increased many fold and the trade mark Manju has acquired a unique goodwill and reputation and the people in the trade know the product as emanating from the plaintiff. The plaintiff-Company claims to be the proprietor of the trade mark Manju in respect of blouse piece. The plaintiff has given the sales figures in the plaint from the year 1980 and up to 1990 and they are as follows :

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          Year                                   Sales of goods 
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         1980-81                                  14,19,232.52 
         1981-82                                  19,01,781,79 
         1982-83                                  33,14,201.21 
         1983-84                                  35,81,530.11 
         1984-85                                  45,14,039.70 
         1985-86                                  55,99,322.38 
         1986-87                                  68,00,000.00 
         1987-88                                  75,00,000.00 
         1988 to March 1989                       40,55,496.00 
         1989-90                                1,70,00,000.00 
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It is the case of the plaintiff that its selling of all varieties of cloth under textile products. The sales figures given are not with reference to blouse piece alone. That is a matter to be decided at the time of the trial of the case. Therefore, for the purpose of this interlocutory petition, in this case the sales figures are not conclusive.

3. It is also claimed by the plaintiff that advertisement has been made extensively through All India Radio, newspapers and magazines and money in lakhs is spent to the advertisements.

4. According to the plaintiff the defendants have started adopting the trade mark Manju in respect of blouse pieces and are passing off on the goods of the plaintiff and it is stated by the plaintiff that in the last week of April 1990 the plaintiff came to know about the activities of the defendants. Hence this suit for injunction against the defendants.

5. On 23.7.90, the defendants filed the written statement. The defendants have challenged the assignment as being illegal in view of Section 38 Trade Marks Act 1958. This is a matter to be decided at the time of trial of the case. The trade mark Manju is a registered trade mark of the defendant since 26.12.1979, though the defendants have been using the same since 1.4.1968. The trade mark 'Manju' is always considered by the persons in the trade as being the mark of the defendants. With a view to misleading the public the plaintiff has been advertising in the newspaper and other publicity media that the plaintiff is the proprietor of the trade mark Manju mentioning as if the trade mark is registered. In para 5 of the written statement, the defendants had stated as to how the defendants had been using the name of 'Manju' since 1968. Para 5 of the written statement is as follows :

"That moreover, Along with the business of Saree Falls, Shri Moti Ram one of the partners of the defendant's-firm with the consent and permission of the defendants-firm and its partners, as a sister concern started individually the business of petticoat and blouse pieces under the trade mark/trade name 'Manju' in the year 1968. Shri Moti Ram carried on the said business up to July, 1975. In August, 1975 another partnership-firm under the name and style of 'Manju' Textiles was constituted which was the sister concern of the defendants-firm, then the said firm also took the business of selling and trading in blouse pieces and/petticoats etc., under the trade mark 'Manju' with the consent and permission of the defendants firm. In the said firm namely 'Manju' Textiles, S/Shri Moti Ram, Mrs. Kamlesh wife of Shri Brij Mohan and Smt. Krishna Devi w/o. Shri Dayaram were the partners. The said firm Manju Textiles was also closed in the year 1980. And thereafter another firm under the name and style of M/s. Sushma Textiles was started and constituted. The said firm started doing doing the business of blouse pieces and petticoats etc., Along with the other business under the trade name/mark 'Manju'. In the said firm S/Shri Moti Ram, Smt. Kamlesh w/o. Shri Brijmohan and Smt. Krishna Devi w/o. Shri Dayaram were the partners. Thus, both the above said firms namely 'Manju' Textiles and Sushma Textiles were the sister Concerns of the defendants firm is March, 1990, said firm M/s. Sushma Textiles was also closed as in fact, the defendants-firm wanted to do by themselves the said business of petticoats and blouse pieces etc., under the trade mark 'Manju' and, therefore, from April, 1990, the Defendants firm by itself started trading/selling in blouse pieces and petticoats etc., under the trade mark 'Manju'. Thus, the defendants firm has been using the above said trade mark even in relation to and in connection with the trade and sale of petticoat and blouse pieces since the year 1968 either through their partners or through their sis tern concerns and in that way they are the proprietors of trade mark 'Manju' in respect of blouse pieces and petticoats etc., has also been associated with the defendants business, and as such the defendants firm also acquired the name in the business of blouse pieces and petticoats etc., with the trade mark 'Manju'. Moreover, the defendants-firm's name is also Manju Falls and, therefore, the defendants firm even otherwise has a right to use firm name in connection with any clothes business including the business of sale and manufacture of falls, saree blouse piece and petticoats etc. None else has a right to use the said trade name 'Manju' in any way in relation to the above said goods and/or any other goods relating to clothes/textiles".

The trade mark 'Manju' was registered under No. 356883 (J. No. 799 in class 26) in respect of saree falls and has been using the same since 1.4.1968.

6. It is claimed by the defendants that the blouse pieces and petticoats and other textile goods are marketed from only one place of the defendants and the activities of the parties are common. On this main ground the defendants contested the claim of the plaintiff. The defendants have not given any sales figures in the written statement.

7. The plaintiff has filed a number of documents. The facts as I understand show that the defendant has been using the trade mark for a long time since 1968 and the plaintiff is trying to carry on its business in the same name.

8. The plaintiff and the defendant are selling the same kind of textile goods and clearly there will be confusion in the market. The defendant's mark is registered. There is justification for the plaintiff to have the same trade mark.

9. The defendants have filed the suit No. 1571/90 claiming the following reliefs :

(i) For perpetual injunction restraining the defendant, its servants, agents, representatives, dealers and all other persons on its behalf from carrying on business as manufacturers or vendors of the saree falls and saree blouse and from selling or offering or exposing or advertising for sale or procuring to be sold any such products under the trade mark consisting of the work 'Manju' or any other trade mark identical and/or deceptively similar to the plaintiff's reputed and registered trade mark 'Manju' under the provisions of the Trade and Merchandise Marks Act, 1958;

(ii) For perpetual injunction restraining the defendant, its servants, agents, dealers, representatives and all other persons on its behalf from passing off its products of Saree Falls and Saree blouse and as and for those of the plaintiff or connected with the plaintiff under the trade mark 'Manju' of the plaintiff and or any other identical and/or deceptively similar trade mark in any manner representing or acting so as to be calculated to lead to the belief that the defendant is or ever has been interested in or connected with the business of the plaintiff and from passing off, or enabling or assisting others to pass off, any such products as aforesaid not being of the plaintiff's manufacture, as or for the plaintiff's goods;

(iii) For delivery upon affidavit by the defendant to the plaintiff all the offending, counter-feilting, labels, stickers, cartoons, wrappers, dies, blocks and other incriminating, material bearing the infringing trade mark under the possession and or control of the defendant for destruction and or enasure purposes;

(iv) For rendition or accounts of profits earned by the defendant on the sale of the Saree Falls and Saree blouse under the infringing trade mark 'Manju' and decree for the amount so found due on the basis of sales made during the period prior to the institution of the present suit till the date of injunction order/decree;

(v) For costs of the proceedings;

(vi) Considering the imminent nature of the case, it would be in the interest of justice to issue an exporte ad-interim injunction order against the defendant :

10. The averments made in the plaint are identical to the written statement filed by them in Suit No. 1463/90. Therefore, I do not consider it necessary to set out the pleadings in Suit No. 1571/90 over and again. In Suit No. 1571/90, IA 3925/90 is filed for injunction restraining the respondents therein from using trade mark 'Manju'.

11. The first user of the mark is the first defendant in Suit No. 1463/90 and prima facie the defendants have made out a strong case. As an interim measure, considering the facts. I feel that the balance of conveyance is in favor of the defendants in Suit No. 1463/90.

12. The argument on behalf of the plaintiff is that the goods of the plaintiff fall in a different class whereas the goods of the defendant falls in a different class and therefore, there will be no likelihood of any confusion. It is not possible to accept the contention that as the blouse pieces are falling in different class in the schedule to the Act, there is no likelihood of customers being deceived.

13. Accordingly IA 3589/90 in Suit No. 1463/90 is dismissed and IA No. 3925/90 in Suit No. 1571/90 is allowed and there shall be an injunction restraining the defendants/respondents its servant, agents, dealers, stockists, representatives or any other person acting on their behalf from manufacturing, selling offering for sale or otherwise, directly or indirectly dealing in blouse pieces (textile piece goods) under the trade mark Manju of the Applicant or any other trade mark which is identical with and/or deceptively similar to the reputed trade mark, 'Manju' of the applicant pending disposal of the suit.

14. The plaintiff in Suit No. 1463/90 has filed IA 4997/90 under Order 39 Rule 2(A). I have gone through the averments made in the contempt petition and I have no hesitation to say that no case for contempt has been made out and therefore IA No. 4997/90 is dismissed.

Suit No. 1571/90.

15. The plaintiff has file IA 5661/90 for the amendment of the plaint. Having considering the matter I feel that no injury will be caused to the defendants by allowing this IA 5661/90 for amendment. The IA No. 5661/90 is allowed. The plaintiff shall serve a copy of the amended plaint on the defendants. The defendants shall have the right to file written statement to the amended plaint.

16. No orders as to costs.

17. IA 5661/90 allowed.